The XY saga of a formerly mentally ill applicant for admission

It is an intriguing saga which is recounted in Board of Examiners v XY [2006] VSCA 190, involving the application for admission to practice by a woman with a criminal record and a history of mental illness. According to psychiatrists, by the time of an appeal to the Supreme Court, her mental illness was over. So the Court overturned the Board of Examiners’ original decision, though acknowledging it had been correct at the time. The Court of Appeal recounted the facts (but did not reproduce the intriguing fact noted by the trial judge that much of the self-harm inflicted by the woman occurred in the toilets of court buildings in the city): Continue reading “The XY saga of a formerly mentally ill applicant for admission”

Soli sends home-made porno to ex-girlfriend’s work and loses ticket

In Legal Practitioners Complaints Committtee v MMT [2006] WASC 211, the Full Court of the Supreme Court of Western Australia struck a 37 year old solicitor (with a Masters in psychology) off the role of practitioners for stalking his ex-girlfriend, another solicitor. In fact he sent her boss a video of him and the victim having sex in happier times. He pleaded guilty in the criminal court and received a suspended 9 month jail sentence. He admitted the allegations against him before the disciplinary tribunal, which found unsatisfactory conduct, the only disciplinary offence in WA, to be made out. The tribunal suspended him from practice. The Tribunal referred its reasons for decision to the Supreme Court. The plaintiff applied successfully for the solicitor to be struck off the roll. Though the solicitor attributed his actions to depression occasioned by the breakup of his relationship with the victim, he had not sought enough psychological assistance for the Court’s liking, and had not been found by the disciplinary tribunal to be genuinely remorseful. He had ceased practising as a lawyer and moved 4 hours away from Perth, where the offences occurred, though. The conduct he engaged in was as follows:

Continue reading “Soli sends home-made porno to ex-girlfriend’s work and loses ticket”

Depressed partner who stole $275,000 gets suspended sentence

R v G*rant [2006] VSC 235
A property lawyer who was a partner in a two partner, 3 office firm, became depressed and failed to lodge tax returns for 9 years. When the ATO cracked down on lawyers, he lodged the returns late, and became liable for about $200,000 in tax, interest, and penalties.

He stole from his clients’ monies he held in trust. He forged documents. He mortgaged his elderly parents’ unit without their knowledge in a flagrant breach of their trust. He paid the proceeds to the ATO. The Law Institute commenced an audit of his trust account following a complaint. Shortly afterwards, he made a very serious attempt at suicide which was averted only through his wife’s intuition. He voluntarily surrendered his practising certificate. He confessed everthing to the Law Institute, and was genuinely contrite. He had given up the law and found a job as a telemarketer.

A year after voluntarily surrendering it, VCAT suspended his practising certificate for 5 years and ordered that he apply thereafter only for an employee’s practising certificate for a further 5 years. That was in March. At some stage, the Fidelity Fund paid back the clients. To the criminal charges, he pleaded guilty. Strong pyschiatric evidence of very profound clinical depression was adduced. The sentencing judge accepted the solicitor’s genuine intention eventually to repay the whole amount paid out by the Fidelity Fund. The solicitor’s counsel, Lex Lasry QC instructed by Rob Stary & Associates, successfully submitted that the sentence — 3 years’ imprisonment — should be wholely suspended: because the need for specific deterrence was nil, because of the early guilty plea and full cooperation, because of the remorse and genuine intention to repay the Fidelity Fund, and because a person with a serious mental illness is not an appropriate vehicle for general deterrence. As to the legal principles involved, Habersberger J said: Continue reading “Depressed partner who stole $275,000 gets suspended sentence”

Late term abortion saga ends

The Australian reports on the Victorian Medical Practitioners Board‘s finding in favour of the 5 doctors allegedly involved in a late term abortion at the Royal Women’s Hospital which upset Coalition MP Julian McGauran. He exercised the right open to everyone to complain about the conduct of a doctor, and the Medical Board was obliged to investigate unless it found the complaint to be frivolous or vexatious, but the saga has prompted change: in future, the Board can decline to investigate on the basis that the complaint is misconceived, lacking in substance or “does not warrant investigation”.

The Supreme Court’s decision (Royal Women’s Hospital v Medical Practitioners Board of Victoria [2005] VSC 225) and Court of Appeal’s decisions ([2006] VSCA 85) are leading authorities about public interest immunity, which the Court of Appeal held provided no basis to withhold confidential patient records.

Court of Appeal reads down VCAT’s jurisdiction to make orders in matters related to proceedings within its jurisdiction

In The Herald & Weekly Times Pty Ltd v Victoria [2006] VSCA 146, the facts of which are described in the previous post, VCAT’s Presdient Justice Morris, having found that the principle of functus officio was not an impediment to him reinstating the relevant proceeding and making further orders, purported to join the newspaper as a party and enjoined it from publishing the details of the terms of settlement lawfully procured by its journalist’s search of VCAT’s file. He found that to publish the details of the expressly confidential settlement would be a breach of an equitable duty of confidentiality. The newspaper said that his Honour had no jurisdiction to make an order against someone who was a stranger to the proceeding but for the reinstatement of the proceeding and the addition of them as a party in order to provide a vehicle by which to make the order.  The Court of Appeal agreed. Continue reading “Court of Appeal reads down VCAT’s jurisdiction to make orders in matters related to proceedings within its jurisdiction”

Disciplinary tribunal can’t find misconduct by commission of crime

Legal Practitioners Conduct Board v Ardalich [2005] SASC 278

A solicitor suffered from what used to be known as “manic depression“. He had been charged with criminal offences of forgery but not convicted on mental grounds. The South Australian Legal Practitioners Disciplinary Tribunal heard charges that the solicitor was guilty of misconduct in having committed different crimes which had never been prosected. The Full Court of the Supreme Court of South Australia held that the Tribunal had over-reached itself in purporting to make findings about the commissions of crimes by the solicitor, but said that acts (admitted by the solicitor) that would be criminal unless met by the defence of insanity were enough to warrant a finding of unprofessional conduct, the purpose of which was not the punishment of the solicitor but the protection of society. So the Full Court struck him off the roll of practitioners. (See also the previous post).

Continue reading “Disciplinary tribunal can’t find misconduct by commission of crime”

Insanity not a defence to professional discipline proceedings

Legal Practitioners Conduct Board v Ardalich [2005] SASC 278

The solicitor referred to in the next post could not escape a finding of unprofessional conduct because of his mental state, even though the species of unprofessional conduct alleged against him was the commission of serious criminal offences to which insanity was a defence. The South Australian Court of Appeal explained: Continue reading “Insanity not a defence to professional discipline proceedings”

Western Australia’s Bleak House Case is a Prosecutorial Flop

Legal Practitioners Complaints Committee v B&M [2005] WASAT 217

No doubt Dickens’s Bleak House is being dusted off in many a household glued of a Sunday evening to the BBC’s new dramatisation which finished in Australia yesterday. In it, lawyers squabble over a disputed estate in the courts of Chancery in the matter of Jarndyce v Jarndyce for generations until a new copy of the will is found which determines all issues, just as the estate is reduced to nothing by lawyers’ fees.  Life imitates art a little bit in this case of an estate whose administration took almost 50 years because of the transposition in the will of the Christian and middle names of a beneficiary — except that the respondent lawyers did not suffer any penalty for tardiness, and certainly did not take a bullet through the heart like Tulkinghorn. The last 15 years of the estate’s administration gave rise to disciplinary charges which seem to have been based on the curious proposition that if partners ignorant about the mysterious world of probate law had been involved, the former partner’s stroke of genius in working out what had happened would have come about a lot sooner. I say curious because the employee solicitor and former partner seems to have been acknowledged by everyone as having had a very long experience of almost exclusively complex probate work. Continue reading “Western Australia’s Bleak House Case is a Prosecutorial Flop”

WA solicitor guilty of unprofessional conduct in “No compensation = No legal fees” ad

Legal Practitioners’ Complaints Committee v SJB [2006] WASAT 201

It is a serious crime in Western Australia to advertise in a way calculated to cause a person make a personal injury claim. A solicitor ran ads headed “Injured in a road accident and made a claim? If so, read on. [footnote: If you have not made a claim, disregard this advertisement.]” A narrow construction of the provision was adopted, consistent with the seriousness of the offence it created, and no breach was found. But not enough was done to explain “No compensation = No legal fees” and the misleading nature of those words amounted to unprofessional conduct as a falling short of the standard of conduct observed and approved by members of the profession of good repute and competence. Continue reading “WA solicitor guilty of unprofessional conduct in “No compensation = No legal fees” ad”

On the perils of the undersupervised law clerk

Legal Practitioners Complaints Committee and JCB [2005] WASAT 213

A sole practitoner dictated many precedent letters for his routine suburban personal injuries practice. His law clerk of 16 years’ experience, an arts graduate and a one-time law student, did all the work in a workers compensation file: she took instructions, signed letters taken from the precedent bank, negotiated with the counterparty, and was charged out at $240 per hour plus GST and $30 per short letter, $50 per one-page letter and $70 per long letter. The solicitor was unable convincingly to establish that he had done anything very much at all.

He was found guilty of “neglect” in failing properly to supervise the clerk and of “unprofessional conduct” in grossly overcharging. The first finding gave rise to a reprimand, the second to a $2,000 fine. Costs claimed at $10,000 were allowed at only $5,000 on the basis that the solicitor successfully resisted a third charge of constructively misrepresenting that the law clerk was a solicitor and on the basis that the retention of senior counsel by the prosecuting Committee was unnecessary. The third charge failed because no evidence was sought to be adduced of the solicitor’s complicity in the alleged deception, a timely reminder of an oft-forgotten principle that there is no disciplinary version of vicarious liability (a different concept from the wrong of failure to supervise). The law as to the supervision of clerks is well summarised in a neat and detailed judgment of Justice Barker, a Supreme Court Judge.

Continue reading “On the perils of the undersupervised law clerk”

Bankrupt may not initiate dispute resolution procedure in relation to rights accrued prior to bankruptcy

Kaiser v Faulkner [2006] VCAT 1302

What this case illustrates is simply that upon bankruptcy the right to seek compensation or the waiver or diminution of legal costs through the dispute process under the Legal Practice Act, 1996 vests in the trustee in bankruptcy and never revests in the bankrupt even if not taken up by the trustee. Continue reading “Bankrupt may not initiate dispute resolution procedure in relation to rights accrued prior to bankruptcy”

Epic battle re trust monies results in misconduct finding against barrister

Victorian Bar Inc v DAP No. 6 [2006] VCAT 1226

A barrister banked $50,000 into his personal account, arguing that it was a “retainer” and not monies held on account of future fees. VCAT found that it could not have been a retainer because that is a modest fee paid to a barrister to prevent them from acting against the payer, and the barrister already could not act against the complainant at the time of the payment because of his close involvement as his counsel over many years prior to the payment. The difference between “wilful” and “reckless” breach of the Legal Practice Act, 1996 or rules of conduct was explained. The interlocutory decisions in this matter were digested earlier. Continue reading “Epic battle re trust monies results in misconduct finding against barrister”

Queensland Legal Services Commissioner

The Office of the Queensland Legal Services Commissioner has, like VCAT, set up a searchable full-text database of disciplinary decisions in Queensland. A Queensland case on gross overcharging, resulting in a 12 month holiday for the solicitor caught my eye: Council of the Queensland Law Society Inc v Roche [2003] QCA 469. It is full of expressions like “inexcusable rapacity”. One of the charges was 12 minutes for wrapping a box of chocolates.

Open offer under cover of denial of negligence averts hearing

Chen’s Case [2006] VCAT 748 (Senior Member Howell): costs; s. 132(b); s. 133(2); s. 407 (see the associated disciplinary decision here)

A solicitor averted being found negligent by openly offering to pay the claimant the maximum amount VCAT could award under cover of a denial of negligence. Mr Howell found that it would not be “fair” to put the solicitor through a hearing only to determine negligence. Continue reading “Open offer under cover of denial of negligence averts hearing”

Costs of prosecutor’s in-house lawyers

Law Institute of Victoria v SA [2006] VCAT 742

A solicitor’s prima facie sound argument — that the indemnity principle at the heart of the common law’s costs jurisprudence meant that the Law Institute should not be entitled to its in-house solicitor’s costs of the prosecution — failed. The reason: because the LIV was engaging in a statutory duty. Continue reading “Costs of prosecutor’s in-house lawyers”

3 years’ holiday for not making ongoing discovery

Guss v Law Institute of Victoria Ltd [2006] VSCA 88 (Maxwell P gave the lead judgment, Callaway and Chernov JJA agreeing)

A solicitor’s right to practice was suspended for three years and he was ordered to pay costs of $31,500 for failing to comply with the obligation of ongoing discovery in relation to what was prima facie a privileged copy of a document produced by an expert witness a few days before trial which, had the existence of the copy document been disclosed to the other side, might have put the other side onto a train of enquiry which might have led to relevant evidence. Continue reading “3 years’ holiday for not making ongoing discovery”

Misconduct in acting in face of duty and associate’s interest conflict

Legal Services Commissioner v JAF [2006] VCAT 581 (Cullity, Shattock, Hannebury) Acting for vendor and purchaser; conflict between duty and interest (of solicitor’s associate)

The Full Tribunal were not impressed with this solicitor who acted for the vendor and the purchaser which was a trust of which his wife was a beneficiary, but did the rule they relied on extend to prohibit acting in the face of a conflict between duty and the interest of an associate? Continue reading “Misconduct in acting in face of duty and associate’s interest conflict”

Justice Gillard says: prosecute the same offence as many times as you like

Update: This decision was reversed on appeal: Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301.

Kabourakis v Medical Practitioners Board of Victoria [2005] VSC 493 (Gillard J)

Justice Gillard said doctors get no res judicata and allowed the doctors’ regulator to fix a bungled prosecution following a complaint by deciding to investigate the matter already decided under its power to investigate of its own volition. Continue reading “Justice Gillard says: prosecute the same offence as many times as you like”

Justice Gillard gives the Law Institute a bloody belting

SPB v Law Institute of Victoria [2005] VSC 509 (Gillard J, 12 December 2005) s. 151(3)(c)

Solicitors who read the back pages of the RPA News (dubbed the “sports pages”) well know the schadenfreude associated with the decisions of professional regulators. Rarely does one have such an enhanced opportunity for guilty pleasure in the public excoriation of a regulator as in this decision, however. His Honour railed especially about the adverse finding made on the papers without interviewing the former client or having her confirm her allegations by statutory declaration.

Continue reading “Justice Gillard gives the Law Institute a bloody belting”

A duty not to tempt witnesses to breach likely confidentiality obligations?

Update, 22 December 2009: I came across this article recently: ‘Using Information: Witnesses Under Obligations of Confidence’ (2002) 22(11) Proctor 16.

Original post:

AG Australia Holdings Ltd v Burton (2002) 58 NSWLR 464; Bernard Murphy “Witnesses and Confidential Information” Litigation Lawyers’ Section Newsletter, March 2006

Melbourne class action litigator Bernard Murphy was found by the NSW Supreme Court to have engaged in the tort of inducing breach of contract by acting with a reckless disregard as to whether asking questions of a “smoking gun” ex-employee witness was likely to involve a breach of the witness’s confidentiality obligations to GIO. [Update, Jan 2007: compare this case.]
Continue reading “A duty not to tempt witnesses to breach likely confidentiality obligations?”